A Few Thoughts on Coercion

As I seem to have inadvertently sparked this Crooked Timber essay by Chris Bertram, Corey Robin and Alex Gourevitch (B/R/G) on workplace coercion, I feel like I should probably say something about it, though Matt Zwolinski and Roderick Long already have good responses you should probably just read instead. Some assorted thoughts:

First, there is a perennial risk in arguments like this of getting mired in a semantic debate about how we colloquially use the term “coercion,” or worse, what more strict definition we think it should have in the context of political theory discussions. That conversation is not interesting or useful, and is sometimes best avoided by just stipulating multiple more precise terms, however artificial it might seem. Off the top of my head, some different ways in which people use “coercion”:

Moralized Coercion: This is the canonical “your money or your life” scenario where X threatens Y with consequence C unless C performs action A, where it’s clear Y has a rights claim against the imposition of C by X, or at least, the imposition of C would be in some way wrong in itself. (Maybe we should call this “attempted coercion,” since Y might not care about C or consider it especially bad: The threat will actually be coercive when Y wants to avoid C strongly enough.) This is probably the most common sense of the word, but not particularly helpful when the right to impose C is precisely what’s in dispute. If we want a sense of “coercion” that’s useful for identifying which acts (or systems) are wrong, we need a descriptive definition where the natural properties that make an action (or system) coercive are also properties that make it unjust. Typically, however, we use the term “coercive” more broadly than that, to cover situations that most of us would not consider wrong or unjust—so at best, a well tailored descriptive definition might help to pick out actions that are presumptively unjust.

Physical Coercion: Maybe the least controversial descriptive use of “coercion” covers cases where physical force is used or threatened in a direct and imminent way. A bouncer ejecting a belligerent patron from a pub—or announcing that he is about to unless the patron leaves quietly—is fairly obviously employing coercion, though in many cases this will be justified coercion. But cases in this set are, by and large, wrong by default and require some special justification—typically involving (at minimum) some prior wrong act by the person at whom force is targeted.

Subjective Coercion: Maybe the broadest sense in which we apply the term “coercive” is to characterize any situation in which Y feels as though they have no reasonable choice but to perform A in order to avoid C. If we want to strengthen this definition, we could impose a double subjective requirement: X threatens C with the intentionthat Y feel this way.As Zwolinski observes, however, there are also plenty of situations that might qualify as “coercive” in this sense which most of us would not regard as even presumptively wrong, or at least not wrong in a way that would justify a legal prohibition. Examples might include: “If you won’t sleep with me, I won’t continue our romantic relationship,” or “I’ll give you a million dollars if you do A.” One intuitive problem with drawing categorical normative conclusions from the subjective sense of “coercion” is that it doesn’t distinguish between threats and highly attractive offers.

Baseline-Sensitive Coercion: If we want to build in that distinction, we might restrict the application of “coercive” to cases where (X intends that) C will make Y worse off than Y would have been if X and Y had not interacted at all, at least within some relevant domain. (Specifying what counts as the relevant domain will, of course, be a tricky problem in itself.) This would cover many cases of blackmail, where X threatens to reveal some highly embarrassing fact about Y unless Y does A. Many people regard such threats as wrong, or at least morally questionable, even when X has learned this fact by legitimate means, and when it would not otherwise be wrong to either publicize or keep silent about it. Whether we think cases covered by this use are wrong, however, may depend on what we think of X’s intentions: Pressuring someone to get their drinking under control by threatening to disclose their embarrassing behavior to a spouse will probably seem less problematic than using the same threat to extract a cash payment. Note that like the physical criterion, it does not necessarily depend on the idea of leaving the threatened party with “no choice” but to comply: A threat might be coercive in these senses even if many people would choose to accept the consequence rather than comply with the demeand.

Coercion as Exploitation of Objectively Unreasonable Alternatives:

Coercion that employs a baseline—and so distinguishes between threatened harms and conditional benefits—covers a lot of the territory. But there are also cases involving conditional benefits—cases in which the involvement of X leaves Y better off—that are often called coercive. We might imagine X comes across Y stranded on an island or injured in a crevasse deep in the woods, with no other hope of rescue, and offers assistance only on the condition that Y first signs over his life savings. If we think (as most people do) that there’s a general moral duty to rescue in those kinds of extreme circumstances, these cases are already covered by coercion in the moralized sense. But few think there’s a general duty to provide employment. For the kinds of cases the Crooked Timber folks are talking about, rather, the idea has to be that when the alternative to employment is sufficiently bad—regardless of whether the employer bears any responsibility for this being the case—it is unreasonable or unfair to take advantage of this by imposing certain terms, even if the underlying offer of employment is not obligatory. This isn’t obviously inconsistent with common usage, but is hard to provide general conditions for without circularity, because it builds in the normative concept of a “reasonable alternative.”

With all that out of the way, how can we best make sense of the intuition that certain kinds of demands that might be made of employees are, indeed, coercive in a morally impermissible way, and distinguish these from permissible conditions of employment? Most of us, for instance, would regard it as clearly coercive and wrong for a boss to demand sexual favors from an employee on pain of termination, but not to demand that the employee show up on time and perform ordinary work tasks competently.

One approach is to simply come up with a list of objectively reasonable and permissible conditions of employment, and another list of objectively unreasonable and impermissible conditions. But our intuitions about what kinds of demands are coercive are typically fairly context dependent. Most of us would regard it as coercive for a boss to demand that employees disrobe in the workplace in order to keep their jobs—but perhaps not if the workplace is a strip club, artist’s studio, or adult film set. (I assume we don’t think these are inherently impermissible categories of work.)

The obvious way to account for these reactions, I think, is suggested by Jessica Flanigan—and rejected a bit too quickly by B/R/G: A demand is coercive when it clearly falls beyond the bounds of what the employee has implicitly agreed to do when accepting a position, but the same demand may be non-coercive when it was a reasonably foreseeable part of the job, knowingly accepted along with the position. This fits well with the baseline-sensitive sense of coercion, because accepting a job typically entails declining other offers or ending one’s search for alternative forms of work, and generally arranging one’s life in ways that make it more costly to be forced to abruptly leave it than it would have been to seek alternative work in the first place.

The baseline-dependent sense of coercion then seems applicable, because (as B/R/G detail at some length) the opportunity costs incurred in accepting a job offer render the employee worse off, in at least one important respect, if they lose the job than they would have been had they instead declined it with full knowledge of the conditions that would be imposed. Something like this is, I think, the only intelligible way to explain our sense that it is coercive to demand (on pain of firing) that an existing employee take on a series of laborious tasks unrelated to their original job description, even where it would not be coercive to offer someone a job that consisted of employing those same tasks.

As B/R/G rightly point out, there are difficulties applying this basic idea to non-extreme cases, because it’s infeasible to explicitly spell out every little detail of what’s involved in a job in advance, and often difficult to determine what types of things were implicitly included or excluded. He may also be right that counting only the most “radical” changes in job description as coercive would wrongly exclude too many cases. But none of this really invalidates the basic idea, which at some level seems like it simply has to be right—or at least part of the correct account—assuming we agree that whether an employer demand is coercive will sometimes depend on whether it’s part of the job the employee agreed to do. Even when the job description is quite loose—as for “personal assistant,” say—there’s almost always some rough domain of tasks that are understood to be included, and others that are excluded. If the argument is just that the law can help codify these expectations—make clear what is presumptively excluded when not implicitly excluded—and otherwise check employer attempts to pull a Darth Vader, libertarians shouldn’t necessarily object in principle, as long as this isn’t a pretext for micromanaging people’s genuinely uncoerced agreements.

Of course, even if we accept this account, it just shifts the focus to the question of whether the initial acceptance of the job was truly voluntary, or itself coerced in some way. But note that if this is the locus of coercion, the laundry list of particular objectionable demands employers might make is rather beside the point. If I am coerced into doing a job, the specific tasks I’m asked to perform, or the rules governing bathroom breaks, might make the overall situation more or less unpleasant, but not more or less coercive. When acceptance is voluntary, conversely, whatever forms of monitoring or regimentation a job might entail are part of the totality of perks and burdens employees evaluate when deciding whether to take (or keep) a job. Constraints one person finds intolerably onerous (sit indoors at a desk under fluorescent lights for eight hours) another won’t mind at all; if they’re voluntarily accepted, there’s just not going to be any fact of the matter about which set of job constraints is “more coercive.”

So what determines when acceptance is voluntary? The trouble here is that it’s not obviously possible to settle this without answering foundational questions of political philosophy and just resource distribution. In this case, again, the concept of “coercion” would not be of much help in resolving theoretical disagreements, because it would depend directly on the differing background theoretical judgments. Note that we’re subtly shifting from the idea of coercion as something imposed intentionally by some particular person or entity to “coercion” as the antonym of a kind of idealized voluntariness—which is inevitable as we get to systemic questions, but also much more complicated. The typical employer has very little control over what a prospective employee’s alternatives look like, and so the relevant “coercion” is no longer something internal to any particular employer’s job offer. One virtue of the baseline-sensitive sense of coercion is that it’s relatively self-contained: To distinguish between a coercive threat and an offer, you ask whether its target is made worse off or merely no better off if they refuse. For particular offers within a social system, that means “better or worse off than they were before.”

But that won’t work if we’re trying to ask the question at the level of the social system as a whole. You’re better off complying with the dictator who monopolizes food production if the alternative is starving—but you’re better off still not having a food monopolist. Assuming we’re not talking about a monopoly employer, though, or about attempts to change the agreed terms of employment, the question is no longer really whether the employer is coercive, but whether the system is coercive. Which entails the question: Compared to what?

For B/R/G, a minimal condition for acceptance of employment to be voluntary is that the employee have a “reasonable alternative to work.” At a population level, though, there is no real alternative to work, reasonable or otherwise: The resources we require to survive have to be produced—or at the very least gathered and processed—before they can be consumed, which means (at least at our current technological level) some of us have to work. If the requirement to do work of any kind is coercive, it’s coercion imposed by nature. So it seems a little too stringent to say conditions on paid labor are coercive unless they would be accepted by people who could live comfortably without doing (commercially compensated) work of any kind. Your baseline for assessing voluntariness has to at least be physically possible when universalized. This makes it similarly problematic to use any kind of pre-property state of nature for the baseline, since it seems unlikely that anything remotely like modern population sizes could be sustained under those conditions. But then it seems we’re stuck with the baseline: “a modern economy under a just distribution, whatever that looks like.”

But maybe we can avoid the population-level question by just saying, informally, that “reasonable alternatives” just means being able to meet one’s basic needs, or maintain some threshold standard of living, without being subject to the will of any particular boss or small group of employers. This is more or less Hayek’s idea: It’s not “coercive” to have to find some willing buyer for your labor, so long as there isn’t any one person or cabal whose will you’re subject to. The more “good enough” options exist, the freer the choice to work for any particular employer. Where we put the threshold, however, will dramatically affect how often this condition is satisfied.

The implied threshold for Bertram seems to depend on expectations set by one’s current standard of living, which is intuitive in one sense but rather odd in another. A worker with a mortgage on a suburban house, several thousand in credit card debt, and a couple of college-bound kids would probably not consider an alternative job to be a “reasonable” or serious option unless it paid enough to support those obligations. This matches how people ordinarily talk when they consider their “realistic” alternatives, but it has the unattractive effect of making “coercion” partly a function of voluntarily assumed obligations—such that one person might be “coerced” into keeping a job that is voluntary for someone else by virtue of having taken on more debt.

Trying to develop this sense of “coercion” satisfactorily, in a way that has any normative bite, seems unpromising. It’s either unattractively subjective or ends up reducing to the question of what an economically just distribution looks like. That isn’t to say it can be entirely avoided: If we want to explain why (for instance) the denizens of Rothbard Island—where a single person or corporation owns all resources and is the monopoly employer—are subject to “coercion,” this is probably the sense we have to appeal to. But whatever story we tell there isn’t really going to be about employment as such, but about why it’s unjust for resources to be so concentrated in the first place.

Since everyone does seem agreed at least on the baseline-dependent account, however, there’s probably fruitful work do be done analyzing what kinds of changes in work conditions or requirements amount to an unfair attempt to leverage the opportunity costs assumed by the worker under the original terms of employment.

“The typical employer has very little control over what a prospective employee’s alternatives look like, and so the relevant “coercion” is no longer something internal to any particular employer’s job offer.”

This ignores the way many large employers of low skilled labor intentionally locate operations (or outsource them) in high unemployment areas. For example, the abuses documented of Amazon distribution center workers in western PA.

Gordon-
Sure, but the employer is not typically the *cause* of the area’s lacking other employment opportunities. Nor is it obviously objectionable per se to locate a business where there are lots of people looking for work. Which isn’t to defend what apparently went on at that distribution center—but I’m not scandalized that businesses don’t build these places in 90210.

What is interesting to me about these discussions is the apparent entire disregard of the fact that the employment relationship is two-sided, and the employees have many means of exerting “coercion” on the employer. As an employer (at times) I have frequently encountered very difficult behavior from employees that had to be put up with.

Also, the law overwhelmingly favors the employees, who can quit whenever they want without notice, but who cannot be arbitrarily let go without a serious risk of consequences. I’m sure that there are 10,000 wrongful termination suits filed by employees for every one filed by employers.

Just as employees may be at times constrained by the presence or absence of good alternatives, so may employers be so constrained.

Yeah, coercion – like being forced to pay union dues which are then funneled into PACs and to candidates who you don’t agree with. Somehow that example gets tossed aside in favor of caricatures of corporate rapetocrats.

This is really cute. After years of enduring bullshit from business libertarians where they abuse the words “slavery” and “oppression” when talking about Social Security, Julian Sanchez wants to give us his meditation on the word “coercion” because we are dealing with something most business libertarians have studiously avoided for so many years, which is bosses at the workplace who are jerks and who mistreat people. And he still doesn’t get that most individuals who are working on behalf of one’s family do not have the easy ability to just walk away from a job so that it is not really a two way street from the employee’s side. Yes, yes, I know about the abuse from employees who sue companies (I often represent those companies), but what occurs far more is boss mistreatment of employees than the other way around.

Maybe pro-labor liberals could focus on trying to codify the implied understandings of workers in employment contracts. Even if these could bee contracted-out-of, they often would not be. Codification of the rights of those in authority is potentially libertarian: this is the justification for written constitutions and statutes.

To give a practical example: in principle, a libertaarian should not object to a statute that said it is an implied term of every employment contract that the employer may not impose work consequences for political activity outside work hours. If an employer wishes to contract out of this implied term, it must do so by having the employee anually sign a specific one-line waiver.

As an empirical matter, I doubt very many employers would ask employees to sign such waivers – at least if political affiliation was unrelated to the job

Libertarians ought to support such a law – although many wouldn’t like it because they culturally identify with employer power (see upthread).

Sorry, but that’s dead-wrong. There is nothing in libertarian “principle” that would condone a massive, sweeping statute to govern ALL employer contracts. Even speaking in terms of “all employment contracts” is anathema to “libertarian” principles. It’s exactly that kind of “all information regarding incredibly complex and dynamic social interactions can be easily aggregated and acted upon by the state” sentiment which Hayek specifically targeted in “The Fatal Conceit”.

Furthermore, in “practical” matters, such a statute effectively turns any termination into a guilty-until-proven-innocent scenario. You assume, just like Crooked Timber, that employment rules will only ever benefit conservative right wing rapetocrats, but the minute some private corporation can’t fire an employee who spends their time burning crosses and handing out free copies of “the Turner Diaries”, is the minute progressives will be up in arms.

Not to mention a glaring fact that’s been missing from this whole debate: All the arguments put forth by CT can easily be put to use in service of pro-Right to Work laws. Why should my employer force me to join a union and provide them with a portion of my income? Even if 2/3rds of the employees sign a card, why should that dictate my own choices for free association?

Finally, this quote: “…although many wouldn’t like it because they culturally identify with employer power ” is nothing but thinly veiled ad hominem rubbish. Yeah, the only reason people POSSIBLY wouldn’t like such a law is because they identify with “employer power”. Might as well just draw up a caricature of a guy in a monocle and top hat burning money to light his cigars.

It wouldn’t govern all employment contracts because it is just a default rule. If employees and employers found it in their mutual interest to let the employer discipline the employee for political activity, they could agree to do so – and fairly cheaply.

Moreover, it is not as though it is possible to have enplloyment contracts without default rules – and those rules are enforced by the state.

So freedom of contract is not offended by codifying default rules.

It’s also just a fact that most libertarians like the idea of employer power – arguably more than they really care about freedom of contracct. Prohibiting an employer from agreeing to a closed shop is an infrigement of freedom of contract, but you don’t get a lof of Reason editorials demanding the repeal of Taft-Hartley.

[…] by stipulating more precise definitions for contested terms that may be vague or ambiguous. I tried this in a recent post on a debate over “coercion” in the workplace that was playing out between the bloggers […]

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